Friday round-up

At Take Care, Nelson Tebbe and Micah Schwartzman worry that “some liberal justices might refuse to call out th[e] egregious violation of Establishment Clause principles in The American Legion v. American Humanist Association, a challenge to a World War I memorial shaped like a cross on public property, “[i]n an effort to gain concessions or to limit the possible damage that this case might do to decades of Establishment Clause precedent.” Additional commentary comes from Andrew Seidel at Rewire.News. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioners in this case.]

Briefly:

At Bloomberg, Greg Stohr reports that “Chief Justice John Roberts is showing a new willingness to side with the U.S. Supreme Court’s liberal wing after the divisive confirmation fight over Justice Brett Kavanaugh,” noting that “Roberts joined the liberals Wednesday in two rulings that left the conservatives in dissent,” “offering fresh indications that Roberts is in no hurry to oversee a conservative legal revolution.”

Subscript Law has a graphic explainer one of those two cases, Madison v. Alabama, in which the justices, by a vote of 5-3, sent a capital case back for the lower courts to determine whether the defendant’s dementia renders him incapable of understanding why the state wants to execute him and therefore incompetent to be executed.

Evan Lee has this blog’s analysis of Wednesday’s opinion in the other case, Garza v. Idaho, in which the court held 6-3 that a defendant who has waived his right to appeal as part of a guilty plea is presumptively prejudiced by his lawyer’s refusal to file an appeal.

At Politico, Josh Gerstein reports that “the still-unidentified company” resisting a grand-jury subpoena related to the Mueller investigation “continues to urge the Supreme Court to take up the issue by formally granting review of the case.”

At The Marshall Project, Andrew Cohen looks at the cert petition in Acklin v. Alabama, in which “[t]he justices have been asked to refine the rules governing attorney conflicts of interest when there may be what the law calls ‘divided loyalties’ during a case.”

In an op-ed for the Los Angeles Times, Scott Martelle weighs in on the cert petition in Tharpe v. Ford, in which a death-row inmate argues that racial prejudice played a part in his death sentence, urging the justices “to take this case and ultimately order lower courts to, finally, do the right thing and hear Tharpe’s appeal.”

In a Federalist Society video, Ashley Baker discusses “the potential implications of Justice [Neil] Gorsuch’s reasoning in his … dissent” last term in cellphone privacy case Carpenter v. United States, in which Gorsuch “sets forth a property rights-based argument for the protection of cell phone data under the Fourth Amendment.”

At the Cato Institute’s Cato at Liberty blog, William Yeatman writes that a brief filed this week by the U.S. solicitor general in Kisor v. Wilkie, in which the justices will reconsider precedents that require courts to defer to a federal agency’s reasonable interpretation of its own regulations, “is remarkable, perhaps even unprecedented, because it reflects the evident desire of the president to cede significant power to another branch of government.”

At The Ginsburg Tapes (podcast), Lauren Moxley breaks down “Ruth Bader Ginsburg’s third oral argument before the Supreme Court,” in which Ginsburg “tried to get the Court to overturn a ruling of just 13 years earlier upholding a volunteers-only jury scheme for women–which the Court upheld on the grounds that women are ‘the center of home and family life.’”

In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, “First Liberty Institute’s Ken Klukowski joins Elizabeth Slattery to talk about the justices benchslapping the Ninth Circuit (twice!) and the oral argument for the Bladensburg Peace Cross case.”

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